The recent case featured in the Evening Standard, of Pinder Reaux client Joanne Walder and her quest to recover her reputation following a libellous slur by Sharon Smith on Facebook indicates that posting unlawful material on Facebook, even on a private Wall on a closed profile can still be disastrous legally.
Where libel cases are concerned, a hurdle that the Claimant must overcome to bring a successful libel claim is that of publication – i.e. how many people have seen the libellous comments complained of. Generally you would assume that if you posted material on a private Facebook Wall then only a limited number of people would see it. This assumption is misleading and incorrect – as Walder v Smith illustrates. Facebook is all about making connections, as many as possible, that is its unique selling point. As such, to claim that comments posted in a private Wall may not be actionable as libel is plainly wrong because of the fact that at the very least all of your followers will see the comments, as they have access to your Facebook Wall. If one of them then re-posts the material, comments, or likes it, the risk is that their followers can then see the libellous material, causing a domino effect of publication. That is similar to what happened in Walder v Smith: libellous material was posted on a private Facebook Wall, and then reposted on another private Facebook Wall, which meant that at least 950 Facebook users saw the libellous material. 950 users are more than enough to prove publication in a libel claim.
Walder v Smith shows that even comments posted in an apparently private conversation on a closed Facebook Wall can still be actionable as libel, and rightly so, as per the letter of the law.
Head of Internet and Media Law